Short Circuit

Usually a “chill” on your freedom of speech is the easiest constitutional injury to prove. But in the Tenth Circuit it seems if you speak too much you’re not “chilled,” and therefore not “injured,” even if you’re breaking an unconstitutional law. Adam Shelton walks us through this chilling brain teaser. Meanwhile, when is competition “unfair”? Alexa Gervasi explains that in Massachusetts it was no...

More on two of America’s favorite subjects this week. Josh House rejoins us as we analyze six separate opinions about one football coach. Josh last came on in the spring when the Ninth Circuit said the coach didn’t have a prayer. Although that ruling stands for now, a number of judges recently exercised their freedom to speak differently. And maybe it’s because of the name, but there’s a lot of Se...

On a special Short Circuit we look at the Constitution, and the constitutional history, of the Golden State. With two state constitutions and conventions in its history, and a multitude of ballot measures amending the state’s highest law, the story of the California Constitution is a turbulent, dynamic, and fascinating look at how constitutions get made in this country. Joining us are two experts...

The Supreme Court has said a “search” occurs when the police invade your “reasonable expectation of privacy.” So what is a “reasonable expectation” to be free from video surveillance in a world where everyone has a camera, everywhere? Rob Frommer tells us the Seventh Circuit says there basically is no such thing as long as what you’re doing can be seen from a public place (or in this case, three c...

Today we think of the Equal Protection Clause as requiring equal treatment of the laws. But in addition to anything else it covers, at its core it’s supposed to protect, well, equal protection. Yet if you bring a claim that you’re not being protected equally the courts generally have little to offer. However, civil rights attorney Laura Schauer Ives just won an appeal at the Tenth Circuit in a tra...

It’s not often that we get three different appellate opinions on the same issue in one week. But recently the Fifth Circuit (twice) and the Tenth handed down their thoughts on mandatory bar associations and the First Amendment. Those are groups that lawyers in some states must join—and pay for—in order to work as licensed attorneys. The Supreme Court has said a lot of things over the years on whet...

The Fifth Circuit is not boring. In just one week they served up enough qualified immunity cases to fill an entire episode, and then some. Nicolas Riley of Georgetown’s Institute for Constitutional Advocacy and Protection joins us to discuss a case he litigated where the circuit failed to apply the Fourth Amendment to some rather un-Fourth Amendment friendly behavior by school officials. IJ’s Anya...

Something that is not the bee’s knees is when the county mosquito sprayers forget to tell you to cover up your bees so they don’t get murdered. When the bee farmers sue, is that killing a taking under the Fifth Amendment? Jeff Redfern comes on to explain how the Fourth Circuit said no, but along the way made it easier for property owners to bring takings claims in other cases. And can federal empl...

If I express myself through designing a new house, is that expression protected by the First Amendment? Last week the Eleventh Circuit avoided that question through a couple dodges for which Paul Sherman takes it to task. And why do defendants enter into plea deals? We often don’t know, but Justin Pearson tells us about an Eighth Circuit case where a man may have had little choice to take one afte...

How many pop culture references can a judge make in an opinion before we start to cringe? “Dean” of #AppellateTwitter Raffi Melkonian joins us to give his thoughts on a recent Ninth Circuit case that perhaps broke the all-time record for “coolness,” perhaps to such an extent that it got in the way of its own underlying legal argument. Plus, Diana Simpson looks at another case from the Left Coast,...

There’s this mysterious word in English that courts love to talk about, the Notorious A-N-D. Does it, in fact, mean “and?” Or does it mean “or?” The correction interpretation of the First Step Act—and a lot of years in prison for a lot of people—ride on the answer. Wesley Hottot explains how the Ninth Circuit and the Eleventh Circuit recently disagreed on this fundamental question. And can you sue...

Can the county foreclose on your house because you haven’t paid your taxes, and then just keep the rest of your equity? In Ohio, yeah, they can. That kind of sounds like a taking without just compensation, which is why Ohio attorney Emily White joined us to talk about her recent case at the Sixth Circuit. Then Kirby Thomas West of IJ takes us “up north” where a band of Native Americans argued thei...

Second Amendment scholar David Kopel sits down with us to set the stage for a big issue we’ll hear a lot about over the next year: What “keep and bear arms” means outside of the home. Whether it’s conceal carry or open carry, does the Constitution protect that right, and if so, how? There’s a case at the Supreme Court from the Second Circuit challenging New York’s conceal carry law, and another ca...

Legal raconteur and writer David Lat joins us for some underneath-their-robes hijinks. David talks a bit about his new venture and his battle with COVID-19. Then he examines a disability case from the Eleventh Circuit which tries to figure out the relationship between a “public accommodation” under the Americans with Disabilities Act and a website. After that, Bob McNamara tells us a tragic story...

What does Sir Walter Raleigh have to do with a Tennessee murder trial? You’ll learn from Rob Johnson, as he confronts his witness with a devastating cross-examination while presenting a unique habeas case from the Sixth Circuit. And does 50 years seem a long time for a case to last? Even in Cook County, Illinois it’s a bit of a stretch. But, as Jeff Rowes explains, given the county’s, and its most...

On a special Short Circuit, professors Christopher Green and Evan Bernick join your host Anthony Sanders to examine one of the great questions of the Fourteenth Amendment: When courts apply the Bill of Rights to the States, should they give those provisions the meaning they had when they were adopted, in 1791, or how they were understood when the Fourteenth Amendment was adopted, in 1868? The ques...

What can a court say in 325 pages? So much that we don’t have much of a clue. Diana Simpson slices and dices the Fifth Circuit’s analysis of a challenge to the Indian Child Welfare Act as it gets set for a highly likely trip up to the Supreme Court. And did you know you can sue the Federal Election Commission if they don’t investigate someone you don’t like? Well, you could, until the D.C. Circuit...

If you’re not a major party candidate it can be really hard to get on the ballot. So hard it’s sometimes unconstitutional. Paul Sherman explains how a Michigan candidate fought the elections bureaucracy in the Sixth Circuit and won (well, at least got on the ballot). Plus, can the City of New York sue to stop global warning? Actually, no. Andrew Ward walks us through a case from the Second Circuit...

Can the police stop and frisk your person based on their “training and experience?” Not if that training and experience is simply that drug dealers like to shake hands, says the Fourth Circuit. Ari Bargil provides the details of a drug dealer that the police were a tad too impatient to lock-up. And can an assistant football coach for a public high school publicly pray at the 50 yard line right aft...

We get a little high-tech this week. Techdirt founder Mike Masnick joins us to explain how Section 230 actually works, and how it was somewhat unusually applied in a recent Second Circuit case. (Mike’s explanation may differ from what a multitude of “experts” have recently been saying in Congress and elsewhere.) And have you seen any drones above your house? IJ attorney Josh Windham tells a story...

The 10th Circuit just can’t make up its mind. You might say it doesn’t know a hawk from a handsaw. Listen to a tale from IJ attorney Jeff Redfern of judicial deference to the government, waiver (or not) by the government, and “vacation” of en banc review. Plus, the case is about machine guns (or not). Then IJ attorney Diana Simpson explains how the 5th Circuit packed an entire federal courts textb...

How much power does the CDC have during the pandemic? Surprisingly, that was not the issue before a district court considering the constitutionality of the CDC’s eviction moratorium. Instead, it was how much power does the federal government have, virus or not. As Michael Bindas explains, that might have tipped the scales when the court interpreted the scope of the Commerce Clause. Out West, Alexa...

New York police disciplinary records were a black box, until the state changed the law. Then the union sued to keep the lid on—but lost. We speak to Tiffany Wright of the Howard University Civil Rights Clinic, who argued the case at the Second Circuit on behalf of the reforms. Also, did you know the government can search your smartphone with absolutely no suspicion when you cross the border? That’...

For once living up to the 1980s-movie-sense of our name, we’re talking about robots. How should the law treat robots? What do we analogize to, the law of traditional machines? Animals? Something else? How should that law be “made,” by courts or by legislatures? And how does the Constitution interact with artificial intelligence? When a robot writes a novel is it “speech?” In a special Short Circui...

If you’re the State, what do you get when you put money owed to a prisoner in a special account, and then take most of that money out for yourself? You lose in federal court. Bob McNamara walks us through a particularly outrageous civil rights lawsuit from Connecticut. Plus, Anya Bidwell describes what happens when a judge is so involved in a case that he shows up at a deposition and also tells th...